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Administrative Law

The (dis)advantageous relationship between International Organisations and their host countries: the Austrian experience

By | Administrative Law, Centre of Excellence, Civil Servants, Employment Disputes, IAL, International Administrative Law, International Organisations | No Comments

 

The relationship between International Organisations (IOs) and their host countries creates some interesting legal and political issues which do not always sit happily together: on the one hand, IOs have broad autonomy and enjoy a remarkable number of privileges and immunities (which are generally a grey area for the host country’s authorities) yet, on the other hand, the IOs are an important resource for the host country in terms of economy and visibility.

In considering this relationship, the Latin expression “do ut des”, which means “give and receive” or, perhaps more accurately, “give to receive” is particularly relevant to the subject matter. In fact, in principle, hosting international organisations is convenient and “remunerative” but it implies the loss of sovereignty of the host country in some fields (e.g. see the extraterritoriality of the international premises) and the conferment of a number of privileges and immunities to the international organisations (inter alia, the immunity from national courts).

Privileges are exemptions from the otherwise applicable substantive law of a state, while immunities are usually regarded as exemptions from the administrative, adjudicatory, or executive powers of a state[1]. Typical privileges of IOs are partial exemptions from some areas of domestic law (such as taxes, customs, foreign exchange controls, immigration), the most common of which is the exemption from the obligation to pay any direct taxes for the IO itself and its employees (while for indirect taxes, reimbursement schemes are frequently agreed)[2]. However, the most important and significant immunity enjoyed by the IOs is that from legal suit, the so-called “jurisdictional immunity”, which can raise different interpretations but the existence of which is not controversial. What is controversial is its scope, i.e., whether it is absolute, restrictive or functional. Most treaties or agreements usually confer a functional immunity, which is not a crystal clear concept, especially for the national authorities that have to face the grey area of IOs’ immunities. It seems that, in practice, the concept of functional immunity frequently leads to a de facto absolute immunity[3].

While financial privileges’ disputes are mainly settled on a diplomatic level, the jurisdictional immunities have generated the most extensive case law in domestic court decisions, which provide “examples for judicial dialogues or conversations crossing national jurisdictional borders”[4]. National courts adopted different approaches to the jurisdictional immunity of IOs also in consideration of the legal system in place, i.e. common or civil law system, the first relying on precedent decisions, the latter on a “constant jurisprudence” that stems from codified legal sources. However, the common denominator is that national courts, in deciding whether to grant the jurisdictional immunity, rely on the availability of alternative dispute settlement methods. With the 1999 Waite and Kennedy v. Germany judgment of the ECtHR, the obligation for IOs to provide an alternative access to justice (namely, an effective internal justice system, comparable to the national one) has been directly linked to the awarding or not of the immunity from the national process. By way of a concrete example, if a national court can be persuaded that the existing mechanism within an IO is insufficient to afford the staff member proper protections of his or her employment rights, it could waive the IO’s immunity in the specific case and proceed to a judicial review of its internal justice system, with consequences on the immunities.

Therefore, in order to enjoy the privileges and immunities there is a “contractual exchange” whereby international organisations must fulfil their side of the bargain, by providing staff member who are subject to those immunities with access to appropriate and sufficient systems of justice as they might expect in domestic jurisdictions[5]. The privileges and immunities of international organisations cannot be considered inalienable if they conflict with the fundamental rights and principles of the host country, of the European Union and fundamental and basic principles of human rights. In short, immunities from legal suit do not give the IOs carte blanche to do as they see fit: this point is all the more pertinent where tortious harm has been caused to the staff member at the hands of the defendant organisation and the functional immunities from legal suit do not extend to such circumstances. The same concept applies to the immunity from enforcement measures, regularly enjoyed by IOs. Even if a domestic court is allowed to rule against an IO, the judgment cannot be directly enforced due to the Organisation’s strong immunity shield from enforcement measures. However, in this case, domestic courts have applied the Waite and Kennedy doctrine where the claimant does not have a reasonable alternative mean of enforcement.

On the other hand, being an International Organisation’s member state is commonly considered beneficial for both state and society, therefore being a host state creates particular advantages. The Austrian government described the presence of IOs in Vienna as an important goal of its foreign policy because it positively affects the country’s reputation and influence in international relations and has positive effects on the local economy.[6] Thus, Austria and the other countries hosting IOs have an interest in the smooth functioning of the Organisations present on their territory and in their freedom from unilateral interference, which generally originates from provisions in treaties and domestic legislation on IOs legal personality and their privileges and immunities. In this regard, it should be noted that Austria occasionally extends privileges and immunities to events related to IOs (such as seminars or meeting) or grants them to international entities whose status as IOs is uncertain such as, the OSCE, which is more a political organisation rather than an international humanitarian one and the CTBTO, which is a treaty signed and ratified by many countries but which cannot enter into force and become binding until all the nuclear technology holder countries sign and ratify it.  However, Austria, throughout the years showed a balanced approach towards IOs’ immunities when those immunities negatively affected third parties’ rights, in particular their right of access to justice. In fact, in Austria the ECHR (see, in particular, article 6) enjoys constitutional rank (like in most civil law European legislations) and the access to justice is part of the treaty law such as, for example, the International Covenant on Civil and Political Rights (ICCPR 1966, in particular, article 4); in addition, it is considered a norm of customary international law, thus binding both IOs and States[7].

During the Cold War, Austria served as platform for international dialogue, due to its geopolitical position and its neutral status. This role of “international hub” was strengthened by the opening in 1979 of the Vienna International Centre (VIC), also called UNO City. Since then, Vienna is seat of the United Nations (UN), together with New York, Geneva and Nairobi. The idea of the VIC born in 1966, when the Government of Austria made an offer to the United Nations to construct in Vienna an International Centre to be used by organisations belonging to the United Nations system. In 1967, the Government of Austria and the city of Vienna jointly decided to assign an area on the left bank of the Danube as the site of the centre and in 1968 organised an international competition for the design of the buildings, which attracted the interest of architects worldwide and was in the end won by the Austrian Johann Staber. The Government of Austria (65%) and the city of Vienna (35%) shared the VIC construction costs (approximately 640 million Euros)[8]. The construction site began in 1972 and the VIC complex, which covers an area of 180,000 m² and has extraterritorial status, was inaugurated on 23rd August 1979. Separate agreements were signed by Austria and, respectively, IAEA and the United Nations (on behalf of UNIDO and the other United Nations entities in Vienna) on 28 September 1979. The Government of Austria handed over the VIC complex to the United Nations and IAEA for the symbolic rental sum of one Austrian schilling (equivalent to 0.07 euro today) a year for 99 years[9].

Over the years, the presence of international entities in Austria grew exponentially and it is now quite impressive: more than 40 IOs, financial institutions, diplomatic representations, NGOs and Quasi-NGOs are present on the Austrian territory and constitute an important economic factor, too. They employ more than 6000 employees, out of which about a quarter are Austrian citizens. According to a recent study by Ernst & Young, the sector spends about 725 million Euros per year, which result in a macroeconomic demand effect of about 1.4 billion Euros and thus contributes to GDP growth and Austria’s prosperity. In the long-term, all indicators demonstrate the economic benefit of the sector, in particular, conference activities increased by one third in the period 2010 – 2014[10]. In this regard, for example, the nuclear negotiations with Iran, successfully completed in Vienna in July 2015, and the “Syria talks” held since autumn 2015, generated a publicity value equivalent to 100 million Euros.

Further to encourage the settlement of International Organisations, Austria incentives also Non-Governmental Organisations (NGOs) to choose it as their seat. In fact, upon request of an organisation, the Federal Ministry for Europe, Integration and Foreign Affairs may grant the legal status of Non-Governmental Organisation by decree, on the legal basis of the Federal Law on the Granting of Privileges to Non-Governmental International Organisations. NGOs not only are an important expression of the civil society, they also enrich the thematic work of International Organisations. In relation to this, since 2016, NGOs have the possibility to apply for recognition as Quasi-International Organisations upon the fulfilment of certain requirements: the organisation must have non-profit character, its structure has to be similar to that of an IO, it must have permanent staff and an appropriately equipped office in Austria; in addition, its work must be related to the mandate of an established IO.  On the other hand, the legal status of Quasi-International Organisation implies certain tax exemptions. A recent example of an organisation, which has been awarded the status of Quasi-International Organisation and that chose Vienna as its seat, is the “Sustainable Energy for All (SE4All)”. It started its activities in summer 2013 and established its permanent headquarters in Vienna in 2015. SE4All is headed by the Special Representative of the UN Secretary General for “Sustainable Energy for All” and therefore fulfils all the above-mentioned requirements[11].

Overall the relationship between IOs, NGOs and Austria can be described as extremely positive and fruitful for both parties. However, the other side of the medal is that the host country tends to avoid conflicts on the privileges and immunities granted to the IOs and on the “grey area” constituted by the jurisdictional immunity. Therefore, there is still room for a more regulated and transparent cooperation between the IOs and the national authorities in order to grant the IOs’ employees and, in general, the third parties involved in disputes with IOs, the full respect of their civil fundamental rights.

 

Ludovica Moro

ludovicamoro@brettonwoodslaw.com

 

[1] A. Reinisch, International Organisations Before National Courts.

[2] A. Reinisch, The Privileges and Immunities of International Organisations in Domestic Courts.

[3] See supra note 2.

[4] See supra note 2.

[5] This is a well-established principle also in the Convention on the Privileges and Immunities of the United Nations. A commentary on the Convention by Professor August Reinisch states: “The de facto “absolute” immunity of the United Nations is mitigated by the fact that article VIII, section 29, of the Convention requires the United Nations to “make provisions for appropriate modes of settlement of: (a) disputes arising out of contracts or other disputes of a private law character to which the United Nations is a party”. The General Convention’s obligation to provide for alternative dispute settlement in case of the Organisation’s immunity from legal process can be regarded as an acknowledgment of the right of access to court as contained in all major human rights instruments.” (http://www.un.org/law/avl/ )

[6] A. Reinisch, The Privileges and Immunities of International Organisations in Domestic Courts.

[7] See supra note 6.

[8] Source: United Nations Office in Vienna (UNOV) website.

[9] See supra note 8

[10] Source: Austrian governmental website – www.bmeia.gv.at

[11] See supra note 10

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BWL Academic Member – Rishi Gulati – Presents at NYU on International Organisations Immunities on 11 April 2016

By | Administrative Law, IAL, International Administrative Law, Multilateral Development Banks, News | No Comments

Monday, April 11, 2016  |  12:30 PM – 2:00 PM
Seminar Room 110, Furman Hall, 245 Sullivan Street

IO Immunity: Access to Justice Denied?

International Organisations (“IOs”) enjoy jurisdictional immunities before domestic courts.  The effect of such immunities is that, generally speaking, national courts refuse to adjudicate disputes where an IO is sued, and where that IO refuses to waive its immunity from suit. Traditionally, IO immunities have been absolute, and generally speaking domestic courts refuse to pierce it. This means that often, individuals and private parties who may have a grievance against an IO, in seeking a remedy, are left to the mercy of the IO’s internal justice system, or to alternative forms of dispute resolution such as arbitration, which can be expensive and opaque. 

In this presentation, I will first, highlight the kinds of disputes that may arise between IOs and private parties. Second, I focus on disputes between IOs and its staff, a common occurrence, showing that such employees may often be left without a remedy. Given that such cases arise frequently, this is a fertile ground to analyse how the principles on IO immunities are developing and work in practice. Finally, I discuss the ongoing Haiti litigation, and the case law from the European Court of Human Rights regarding the right to access to courts and its bearing on IO immunity. I will conclude by making observations whether or not these decisions have succeeded in enhancing access to justice.

Further details > 

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The EBRDAT reaffirms the application of general principles of international administrative law to the internal law of the EBRD and criticises it for being “exceedingly pedantic”

By | Administrative Law, IAL, International Administrative Law, Multilateral Development Banks, News | One Comment

Following the successful appeals to the European Bank for Reconstruction and Development Administrative Tribunal (“EBRDAT”) in the cases of Kominek & Others v EBRD (see: EBRD 2013/AT/01 and EBRD 2013/AT/02), Neil Macaulay and Alex Haines of Bretton Woods Law (“BWL”) have secured another victory in the case of Grassi v EBRD (see: EBRD 2016/AT/01).  On the 18th January 2016, the EBRDAT allowed Mr Grassi’s (“Appellant”) appeal against the 9th September 2015 decision by the EBRD President adopting the recommendation of the Bank’s Grievance Committee (“GC”).  The GC, which sits as the body of first instance in the Bank’s internal justice system and below the EBRDAT, had recommended not to exercise its jurisdiction over all the elements contained in the Appellant’s ‘Request for an Administrative Review Decision’ (“RARD”) on the basis that it had been submitted outside the relevant procedural deadline, and was thus time-barred.  The time limit for the submission of the Appellant’s RARD landed on a non-working day (i.e., Saturday) but was submitted the next working day (i.e., Monday).  The EBRDAT found that, contrary to the GC’s recommendation and contrary to the Bank’s arguments, the Appellant’s RARD had, in fact, been timely submitted on the Monday, even if, strictly speaking, it came after the Saturday deadline.  The EBRDAT had “no hesitation to ‘remedy’ the anomaly in the Grievance Procedures by way of a liberal interpretation” (see: paragraph 33 of the judgment).

The EBRDAT’s judgment adopted the arguments raised by the Appellant, and relied, inter alia, on best practices of other Multilateral Development Banks (“MDBs”) (e.g., the International Monetary Fund (“IMF”) and the African Development Bank (“AfDB”)).  The rules of procedure at the Administrative Tribunals of a number of international organisations allow, as do many national systems, for the filing of a grievance on a ‘next working day’, thus preventing the unfair situation that had arisen in the Appellant’s case.  The Bank had argued that the procedural rules should be interpreted strictly, despite the apparent prejudice in this case.  The EBRDAT, however, relied on a judgment from the Administrative Tribunal of the International Labour Organisation (“ILOAT“) (see: Judgement No. 2882, at consideration 6) and further found that “the Bank’s interpretation is exceedingly pedantic and formalistic, and would unduly hinder the Staff Member from defending his right effectively” (see: EBRD 2016/AT/01, at paragraph 33).

In its judgement, the EBRDAT also took into account of the contra proferentem rule, natural justice, and fairness as a principle of international administrative law.  Although the EBRDAT did not take the case of Kominek into account because its facts were different, that case also resulted in the EBRAT criticising the Bank for complicating matters unnecessarily: “Voluminous arguments and numerous documents have been submitted to the Judges, who have read them and concluded that this matter has been treated by the Bank as exceedingly complex when it is in effect quite simple. Indeed, it seems important that ordinary Staff Members perceive that the options for vindicating their rights are straightforward, lest they be intimidated by the ostensible prolixity (and attended costs) of the grievance system” (see: EBRD 2013/AT/01, at paragraph 21).

The latest EBRDAT decision is a victory for common sense: it remedies an exceedingly pedantic and formalistic approach depriving staff members from effectively defending their rights naturally, justly and fairly; it provides useful guidance for the GC on how to interpret the Bank’s internal laws; and it reaffirms the application of general principles of international administrative law to the internal law of the Bank with a view to filling its lacunas.

Read more >

The BWL IAL team can be contacted at enquires@brettonwoodslaw.com

 

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Bretton Woods Law speaking in at British Embassy in Vienna and La Sapienza University in Rome

By | Administrative Law, IAL, International Administrative Law, News | No Comments

On 27th November, Bretton Woods Law presented a seminar on international administrative law in Vienna. Hosted in conjunction with the British Embassy in Vienna and UK Trade and Investment (‘UKTI’) at the Residence of HE the British Ambassador, some 38 delegates from 25 different international organisations attended for a selection of lectures presented by members of BWL covering themes such as fundamental and essential rights, harassment, the big issues of IAL and litigating before administrative tribunals and legal insurance.

This event follows BWL’s participation in the Round Table at La Sapienza University in Rome on 6th November, which focused on the theme of ‘right of appeal in international administrative courts. The Round Table was organised by the Committee of Staff Representatives of the Co-ordinated Organisations (‘CRP’), the Association of Scholars of International and European Law, the University of Rome La Sapienza’s Department of Communication and Social Research, the Journal of the International Legal Cooperation, KorEuropa (On-line Journal of the European Documentation Centre of the Kore University of Enna), the International Law and European Union Law Series (Aracne Ed.). Jazz Omari delivered a presentation entitled ‘Should an appeal mechanism be introduced against rulings by the courts of International financial institutions?’ which compared the current structure of the internal justice systems at multilateral development banks and examined possible structural reforms devised by Lee Marler. The Round Table received a Medal of the Presidency of the Italian Republic and the presentations shall be published by Aracne Editions in the new year.

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Alex Haines presents to the Council of Europe in Strasbourg for the Administrative Tribunal’s 50th anniversary

By | Administrative Law, IAL, International Administrative Law, News | No Comments

Earlier this year, Alex Haines from Bretton Woods law gave a presentation on the Appeals Systems of international organisations at the Council of Europe in Strasbourg for its Administrative Tribunal’s 50th anniversary: The International Colloquy of the Administrative Tribunal – Common focus and autonomy of international administrative tribunals.

[icon_button type=arrowright target=blank url=http://clients.dbee.com/coe/webcast/index.php?id=20150319-1&lang=lang&ch=28]Watch the presentation[/icon_button]

International Colloquy of the Administrative Tribunal

 

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Legal Expenses Insurance – Game Changer for International Civil Servants

By | Administrative Law, Civil Servants, Employment Disputes, IAL, International Administrative Law, News, Uncategorized | No Comments

Earlier this year, lawyers from BWL were approached by a Manager at a large International Organisation based in London who had been, in his view, a victim of retaliation. As as a result, he was not promoted and his employer organisation failed to award him the pay rise he deserved.

He notified his household insurers who confirmed that his policy included legal expenses insurance for grievances arising out of employment disputes with his employer. Initially, his insurance company wanted to appoint an English employment lawyer to represent him throughout the international organisation’s internal justice system. Lawyers from BWL explained that the applicable law (i.e., international administrative law or ‘IAL’) was specific to international organisations and the insurance company eventually agreed to instruct experts in IAL to represent the employee in question. Once the formalities had been completed, the employee’s lawyers were able to represent him before the organisation and invoice the insurance company directly. A settlement was eventually reached, and at no stage did the employee have to pay for his legal representation.

This success story is a small step in balancing out the inequality of arms that exists all to often between international organisations and their employees. International Civil Servants are advised to examine the terms and conditions of their household insurance to check if it covers legal expenses for their employment disputes. They should also be aware that being insured does not mean that they have to accept any lawyer provided by the insurers, who will often not have the expertise required to represent them effectively.

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BWL to send Alex Haines to Brazil

By | Administrative Law, IAL, IAL Seminars, International, International Administrative Law, Multilateral Development Banks, News, Rule of Law | No Comments

BWL to send Alex Haines to Brazil as part of Bar Council and UK Trade and Investment business development mission.

Alex Haines has been selected to be part of the business development mission to Sao Paulo and Rio de Janeiro, organised by the Bar Council’s International Committee and supported by the UK Trade and Investment Government department.  The aim of the mission, which takes place between 22nd and 28th March 2014, is to raise the profile of the English and Welsh Bar within the Brazilian legal market and to promote the services barristers can offer Brazilian clients.

 

Alex will be giving a talk to the Ordem dos Advogados (the Brazilian Bar Association) on sanctions proceedings in the context of corrupt companies bidding on projects funded by Multilateral Development Banks (“MDBs”) such as the World Bank Group (“WGB”) and the Inter-American Development Bank (“IDB”).  The Brazil mission includes market briefings with UKTI, visits to Brazilian Law firms who specialise in International Law and networking receptions.  Alex will also be giving seminars to International Organisations based in, or with regional offices in, Brasilia and Rio de Janeiro on International Administrative Law, which is the law of the international civil servant.

bretton_global

Bretton Woods Law’s unique Global Approach to an International Practice

By | Administrative Law, Centre of Excellence, IAL, IAL Seminars, International Administrative Law, Multilateral Development Banks, News | No Comments

Law firms and barristers chambers often claim that they practise throughout the world and describe their work as international; but what does it mean to have a truly international practice? For the lawyers at Bretton Woods Law, an international practice means exactly that: practising in different countries, in different languages, with people of different nationalities and cultures, and within different international organisations. Since its birth in spring 2012, BWL has set itself apart from other law firms and barristers chambers by living up to its ever growing reputation as an established team of preeminent international law specialists with a truly global reach. BWL’s international practice manifests itself in the following ways:

 

1. International anti-corruption practice: investigations into alleged sanctionable practices in development projects worldwide

In the last 18 months, the lawyers at BWL have undertaken investigations into World Bank and Asian Development Bank (ADB) funded projects carried out in Tanzania, Zimbabwe, Sierra Leone, Southern Sudan, Afghanistan, Kyrgyz Republic, Mongolia, Cambodia, Vietnam, Ukraine, Kosovo and Sri Lanka. They have worked directly with the World Bank’s Integrity Vice-Presidency (INT) and the ADB’s Office of Anticorruption and Integrity (OAI), and have established themselves as experts in this specialist field. Members of Bretton Woods Law are also currently instructed by the African Development Bank’s (AfDB) Integrity and Anti-corruption Department (IACD) and have workings with the Global Fund’s Office of the Inspector General.

 

2. International organisations and their internal justice systems

The lawyers at BWL currently operate in seventeen international organisations, based in nine countries and spread over four continents. Their work is varied and they currently act for:

  • the staff associations, councils and unions of the European Bank for Reconstruction and Development (EBRD), the Inter-American Development Bank (IDB), the Pan American Health Organisation (PAHO), the European Patent Office (EPO);
  • individual international civil servants and board members at the International Criminal Court (ICC), the International Maritime Organisation (IMO), the International Oil Pollution Compensation Funds (IOPC) the Commonwealth Foundation, the United Nations Development Programme (UNDP), the International Coffee Organization (ICO), the EBRD, the IDB, the PAHO, the EPO and the ADB; and
  • the Commonwealth Secretariat (in relation to cases arising out of grievances within its own internal justice system).

Beyond assistance and representation in the disciplinary boards and the first-tier tribunals such as the Conciliations Committees, the Grievance Committees and the Joint Appeal Boards, the lawyers at BWL also represent clients in the IDB Administrative Tribunal in Washington DC, the EBRD Administrative Tribunal in London, the ADB Administrative Tribunal in Manila and the International Labour Organisation Administrative Tribunal (ILOAT) in Geneva.

 

3. International Alternative Dispute Resolution

Beyond traditional litigation and advocacy within international organisations’ internal justice systems, the lawyers at BWL are experts in international Alternative Dispute Resolution (ADR) and currently represent the Uruguayan, Guyanese, Brazilian, Guatemalan, Bolivian, Nicaraguan, Mexican, Paraguayan, Panamean, Costa Rican and Argentinian Country Offices of a large international organisation in formal mediation proceedings. BWL also has experience of mediations arising out of employment disputes within the EBRD and the Commonwealth Secretariat in London. Through its International Alternative Dispute Resolution Services (iADRs), BWL’s dedicated team ensures it offers known experts in International Organisations Law who are CEDR trained and accredited mediators who have the ability to broker settlement agreements in the most difficult and challenging of circumstances.

 

4. Multilingual lawyers and offices worldwide

Boasting seven specialist lawyers of four different nationalities and diverse backgrounds, who between them practise (written and spoken) in English, French, Spanish and German, BWL has representative offices in all the important seats of international organisations worldwide: London, Geneva, New York City, Washington DC, Tunis and Manila. Members of Chambers have lived and practised in the United Kingdom, Germany, the United States of America, Tunisia, France, Switzerland, East Timor, Papua New Guinea, Belize, Cyprus, the Turks and Caicos Islands, the Netherlands, Australia and the Gaza strip.

By travelling around the globe representing International Civil Servants who face intricate employment issues, the BWL team faces varying approaches, languages and cultures on a daily basis, all of which they takes in their stride. This innate empathy with different nationalities enables them to represent their clients against large international organisations with a very human approach. The same can be said for their work alongside companies who have been accused of fraud, corruption and bribery on projects funded by multilateral development banks (MDBs). Their ability to carry out investigations and research involves dealing with clients, including international organisations and International Financial Institutions (IFIs), from around the world, and their cultural sensitivity and international experience is highly advantageous and benefits clients and colleagues alike.

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The Success of which we cannot speak

By | Administrative Law, Civil Servants, Human Rights, International Administrative Law, London, News | 2 Comments

Barristers from Bretton Woods Law last week won yet another international employment law case within the European Bank for Reconstruction and Development’s (“EBRD” or “Bank’s”) internal justice system.  In fact, this is the third straight win in a row of late at the EBRD for BWL, but, regrettably, we are prevented from telling you about two of the three cases because the Bank intentionally applies a cloak of secrecy to the ministrations and jurisprudence emanating from its Grievance Committee.  One of the three cases was, however, a judgement of the EBRD’s Administrative Tribunal (“EBRDAT”) in respect of the jurisdiction of the Grievance Committee to hear a particular matter.  This judgement was thankfully published on the Tribunal’s webpage and it makes for interesting reading for a variety of reasons, not least of which is the implicit criticism of the Bank’s behaviour [read].

The EBRD, which is headquartered in London, is an international organisation that enjoys limited immunity from legal suit within the United Kingdom.  But the EBRD’s immunity is sufficient to cover employment disputes and, as a result, disgruntled EBRD employees are generally unable to seek recourse or protection from English employment tribunals.  EBRD employees have in general no other option than to rely upon the substitute internal system of justice created by and imposed upon them by the Bank for the resolution of their employment related grievances.

The Grievance Committee is the EBRD’s court of first instance and therefore the fact-finding body within its internal justice system, with an appeal lying thereafter to the EBRDAT.  The Chair of the Grievance Committee is an external lawyer, who is assisted in his or her deliberations by two staff members sitting in the capacity of Assessors.  The EBRD’s internal law only permits the Grievance Committee to make a recommendation on the outcome of an employment dispute to its President, Sir Suma Chakrabarti, and it then falls to Sir Suma to decide whether to accept or reject the Committee’s findings.  Sir Suma is the decision maker at first instance and this is so regardless of whether the employee is seeking to contest the lawfulness of his decisions.  In contrast, the EBRDAT is permitted by the Bank to pass judgement on disputes and its judgements are both binding and published on line. However, the recommendations of the Grievance Committee are not published nor are Sir Suma’s decisions thereon, which is truly astonishing given the fact that the Bank, as an international organisation, is a product of and is subject to customary international law, including inter alia article 6 of the European Convention on Human Rights (“ECHR”)

Article 6 of the ECHR stipulates that “everyone is entitled to a fair and public hearing within a reasonable time by an independent and impartial tribunal established by law” in the determination of their “civil rights and obligations.”  What is more, article 6 provides that not only should any hearing be in held in public, but that “judgement shall be pronounced publically.”  The EBRD falls down on both these points, for its Grievance Procedures (2011), which is the internal law that establishes and guides the Grievance Committee, exclude from the hearing or trial of the facts at first instance everyone other than the parties, including union representatives, and treats the proceedings of the Committee as confidential, including any report of the Grievance Committee to Sir Suma and any subsequent decision taken by him.  What makes matters worse is that the EBRD floats the threat of disciplinary action against any employee who openly talks about or otherwise discloses details of his or her case, both within the Bank and outside of it.

What this means in practice is that the EBRD is able to hide from the public at large and, more importantly, its serving employees the outcomes of cases that it has lost at first instance and any criticism levied against it by the members of the Committee, including the external and independent judge.  This lack of transparency self-evidently defeats the aims of justice, as it conceals judicial work that would assist immeasurably other disgruntled employees and their lawyers, stifles the making of informed complaints and, significantly, prevents the Bank’s Board of Directors from shining the spotlight of accountability on those who need to be illuminated.

Blanket confidentiality at first instance is an all too common practice within the internal justice systems of international organisations and BWL lawyers take the view that such confidentiality has no place in an internal system that acts as a substitute for national courts and tribunals.  It is abused by international organisations, it is abhorrent and it should be stopped.  If international organisations fear exposure of their behaviour, then the simple and, in truth, only answer is to take steps to improve.  However, until organisations such as the EBRD comply with their obligations under prevalent and applicable human right laws, we are unable to discuss in any detail how our clients, with our assistance, have prevailed and often in circumstances that have attracted judicial criticism of their employers.